Local health bosses are saying they are legally obliged to put NHS services out to competition, despite repeated government promises to the contrary, it emerged today.
A survey in today’s Pulse magazine revealed that since April, Clinical Commissioning Groups have put 63% of contracts to provide NHS services out to tender, with a further 9% using the slightly different ‘Any Qualified Provider’ route. The contracts that have been opened up to private healthcare companies to take over include every aspect of NHS services and total billions of pounds.
And according to Pulse:
“When asked whether they had awarded contracts without putting it out to competition, many Clinical Commissioning Groups – including Cambridgeshire and Peterborough – answered: ‘This would be contrary to the section 75 regulations.’”
The revelation will re-open controversy about broken government promises on NHS privatisation.
The Section 75 regulations were made under the Health & Social Care Act in April this year. They appeared to force competition on the NHS in contravention of ministerial promises made during the stormy passage of the Act itself. At a critical juncture then health secretary Andrew Lansley wrote to the new local health bosses (Clinical Commissioning Groups) telling them that,
“I know many of you have read that you will be forced to fragment services, or put them out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators – should decide when and how competition should be used to serve your patients interests.”
And he told the House of Commons,"There is absolutely nothing in the Bill that promotes or permits the transfer of NHS activities to the private sector"
Days later Tory health minister Earl Howe promised the Lords "Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new markets, particularly where competition would not be effective in driving high standards and value for patients. As I have already explained, this will be made absolutely clear through secondary legislation and supporting guidance as a result of the Bill."
However when this secondary legislation emerged in February this year - the Section 75 regulations - it appeared to break these promises and give local health commissioners no choice but to put NHS services out to competition, as first highlighted on OurNHS openDemocracy and by Keep Our NHS Public.
A storm of protest errupted. Over 1000 health professionals wrote to the Telegraph urging for the regulations to be scrapped. Both the unions and the Royal Colleges - even those who had been muted in their opposition to the Act itself - and were up in arms at what the Association of Royal Colleges called ‘privatisation by stealth’. Over 300,000 38 Degrees members signed a petition for them to be dropped. Polly Toynbee called for the Lib Dems not to stand for any more lies on the NHS and many Lib Dem activists raised concerns.
Lib Dem health minister Norman Lamb told parliament "We are looking at this extremely seriously. Clear assurances were given in the other place during the passage of this legislation and it is important they are complied with in the regulations."
A day later, Cameron was still defending the section 75 regulations in Prime Ministers Questions. Asked by Lib Dem MP Adrian Sanders to withdraw the regulations, he replied
"I urge my hon. Friend to look very closely at those regulations, because he will find that … withdrawing them would actually lead to more competition in the NHS"
But despite Cameron's assurances, the storm grew. The Labour and Green leadership and Lib Dem backbenchers teamed up and - unusually - laid motions in both the Commons and the Lords in an attempt to scrap the regulations.
The government was forced to at least appear to backtrack. The regulations were hastily redrafted, and the ever-charming Lord Howe was sent out to bat, claiming:
“It has never been and is absolutely not the Government’s intention to make all NHS services subject to competitive tendering or to force competition for services. That would compromise the power and freedom we are giving to local doctors and nurses. I believe we now have a set of regulations which puts this beyond doubt.”
Critics including leading lawyers acting for 38 Degrees argued the re-drafted regulations did no such thing, and still enforced compulsory markets in the NHS, regardless of clinical or local wishes and in contravention of government promises. A wide array of experts and medical professionals raised similar concerns with OurNHS openDemocracy, here. A - highly unusual - motion to strike down these regulations was laid down by Lord Phil Hunt, Labour health spokesperson.
In the debate on 24th April this year, Lib Dem health spokesperson, Lord Clement Jones, told the House of Lords:
"Commissioners will not be forced to tender".
He said Lib Dems had worked with government to redraft the regulations to prevent CCGs coming to this "incorrect belief" and this had made it "absolutely clear" that CCGs could not be forced to go to tender. Lord Hunt's claims that the Section 75 regulations broke Lansley's promises and would "promote and permit privatisation and extend competition" were "conspiracy theories", Lord Clement Jones added.
And Tory health minister Earl Howe backed him up, saying:
"It is NHS commissioners and no-one else who will decide whether, where and how competition in service provision should be introduced."
Influential Lib Dem peer Shirley Williams told the Lords debate:
"We have learnt in the debates in this House to trust the noble Earl, Lord Howe.”
The Lib Dems duly voted with the government in favour of the regulations and they were confirmed in law.
But the revelations now coming from CCGs show the government's critics have been proved right - making Burnham's pledge to repeal the Act, even more urgent.
In the mean time, will Lord Howe step up and tell the CCGs definitively that their legal advice - which contradicts his parliamentary promises - is incorrect, and they don’t have to put services out to competition after all?
The government has so far refused to release their own legal advice despite Freedom of Information requests by both OurNHS and Labour’s Lord Phil Hunt.
Or will government ministers be allowed to just keep quiet and hope the local health bosses and doctors continue to take the flak for a policy they were clearly missold?
It is a policy strongly opposed by voters, fewer than one in 5 of whom want any more market competition in the NHS.
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